Property

I. NOTION OF PROPERTY

The proprietor or owner of a thing, in the current acceptation of the word, is the person who enjoys the full right to dispose of it in so far as is not forbidden by law. The thing or object of this right of disposal is called property, and the right of disposal itself, ownership. Taken in its strict sense, this definition applies to absolute ownership only. As long as the absolute owner does not exceed the limits set by law, he may dispose of his property in any manner whatsoever; he may use it, alienate it, lease it etc. But there is also a qualified ownership. It may happen that several persons have different rights to the same thing, one subordinate to the other: one has the right to the substance, another to its use, a third to its usufruct, etc. Of all these persons he alone is called the proprietor who has the highest right, viz., the right to the substance ; the others, whose rights are subordinate, are not called proprietors. The tenant, for example, is not said to be the proprietor of the land he tills, nor the lessee proprietor of the house in which he dwells; for though both have the right of use or usufruct, they have not the highest right, namely the right to the substance. There are two reasons why he to whom the substance of a thing belongs is called its proprietor: first, because the right to the substance is the highest right ; secondly, because this right naturally tends to grow into absolute ownership. The tenant, for instance, enjoys the usufruct of a thing only through a cause which lies outside the thing itself, i.e. through a contract. If this cause is removed then he loses his right, and the thing reverts to him to whom the substance belongs. The right to the substance necessarily implies the absolute right of disposal as soon as any accidental, external limitations are removed. This is probably the reason why lawmakers, when establishing the definition of property, take into consideration only absolute ownership. Thus the French civil code (544) defines ownership as "the right to make use and dispose of a corporeal thing absolutely provided it be not forbidden by law or statute"; the code of the German Empire (903) says: "The proprietor of a thing may use it as he likes and exclude from it all outside interference, as long as the law or the rights of others are not violated" and in Blackstone (Comm. I, 138) we read that the right of property "consists in the free use, enjoyment and disposal of all acquisitions, without any control or diminution, save only by the laws of the land".

The statement has been made that the Roman law set up a definition of property which is absolute and excludes all legal restrictions. This is not correct. The Roman jurists were too vividly conscious of the principle Salus publica suprema lex to exempt private property from all legal restrictions. No clearer proof is needed than the numerous easements to which the Roman law subjected property (cf. Puchta, "Kursus der Institutionen", II, 1842, 551 sqq.). Precisely in order to exclude this erroneous conception, the Roman jurists, following the example of Bartolus, generally define perfect ownership as the right to dispose perfectly of a material thing in so far as is not forbidden by law ( Jus perfecte disponendi de re corporali nisi lege prohibeatur ). Again, man is essentially a social being. Consequently, all rights granted him are subject to the necessary restrictions which are demanded by the common welfare and more accurately determined by law. This right of disposal which the civil power exercises over property has been called dominium altum , but the term is misleading and should be avoided. Ownership gives to a person the right to dispose of a thing for his private interests as he sees fit. The Government has no right to dispose of the property of its subjects for its private interests, but only as far as the common weal requires.

II. CLASSES OF PROPERTY

If the holder of the right of ownership is considered, property is either individual or collective, according as the owner is an individual (a physical person ) or a community (a moral person ). Individual property is also called private property. Again, collective property differs as the community. Those estates are not collective property which have for ever been set aside for a fixed purpose and are, by a sort of fiction, considered as a person ( persona juridica, ficta ), for example, endowments for pious purposes or for the public benefit: hospitals orphanages etc. For the actual administrators or usufructuaries are not to be regarded as proprietors of the endowment. Furthermore, property may be either public or private. Public property is the property of a public community, namely, the State and the Church. Everything else is private property. However, the distinction between private and public property arises not only from difference in ownership, but also from difference in purpose. Public property is intended to serve the interests of the community at large; private property, the interests of a limited circle. Familyproperty is private property, even if it belongs to the family as a whole. Not all collective property is public property. The property of a community remains private as long as that community is able to exclude outsiders from participating in its enjoyment. But when a community can no longer prevent outsiders from settling down in its midst and, like the rest, sharing in its property, that property ceases to be private. If we consider the object of ownership, property may be movable or immovable. Immovable property consists in land (real estate), and in everything so attached to the land that, as a rule, it cannot be transferred from one place to another without undergoing a change in its nature. All the rest is movable property. Lastly, the purpose distinguishes property into goods of consumption and goods of production, according as the goods are directly intended either for production, i.e. for producing new goods, or for consumption.

III. POSSESSION OF PROPERTY

Possession differs essentially from property. At times, possession denotes the thing possessed, but generally it means the state of possessing something. He possesses a thing who has actual control over it and intends to keep it. Possession may be unjust, as is the case with the thief who has knowingly taken the property of another. Since such possession is manifestly unjust, it gives the possessor no right whatever. On the other hand, it may happen that one is bona fide possessor of another's property. Such possession implies certain rights. It is incumbent on the owner to prove that the thing does not belong to the possessor. If he is unable to furnish this evidence, the law protects the actual possessor of the thing under dispute. The basic reason why possession must not be neglected when ownership is disputed is that under normal conditions possession is the result of ownership. For, generally speaking, the possessor is the owner of a thing. This being the normal state of affairs, the law favours the presumption that the actual possessor is also the legal possessor and consequently holds that nobody has the right to evict him unless the illegality be proved. He who seeks to overturn existing conditions as being unjust must bear the burden of proof. Should this principle be denied, the security of property would be greatly endangered.

IV. OPPONENTS OF PRIVATE PROPERTY

The present order of society is largely based on the private property of individuals, families, and communities. Now there are many communists and socialists who condemn this kind of ownership as unjust and injurious, and who aim at abolishing either all private property or at least the private ownership of productive goods, which they wish to replace by a community of goods. Their intention may be good, but it proceeds from a total misunderstanding of human nature as it is, and, if carried out, would result in disastrous failure (cf. COMMUNISM and SOCIALISM). The so-called agrarian, socialists, among whom must be numbered the single-taxists, do not propose to abolish private ownership of all productive goods, but maintain only that the land with the natural bounties which it holds out to mankind essentially belongs to the whole nation. As a logical conclusion they propose that ground rent be confiscated for the community. This theory, too, starts from false premises and arrives at conclusions which are impracticable. (See AGRARIANISM.)

V. INSUFFICIENT JUSTIFICATION OF PRIVATE PROPERTY

Outside the communistic and socialistic circles all concede that private property is justified; but in regard to its foundation opinions differ widely. Some derive the justice of private property from personality (personality theory). They look upon private property as a necessary supplement and expansion of personality. Thus H. Ahrens ("Naturrecht", 6th ed., 1871, & sect ; 68) thinks that the "individuality of every human mind, in choosing and attaining its ends, requires property, i.e. the free contract and disposal of holdings, whereby the entire personality is brought into action. Similar views are held by Bluntschli, Stahle, and others. This theory admits of a correct explanation, but is in itself too indefinite and vague. If it is understood to mean only that, as a rule, private property is necessary for the free development of the human personality and for the accomplishment of its tasks, then it is correct, as will appear in the course of our discussion. But if these theorists remain within the pure notion of personality, then they cannot derive from it the necessity of private property, at least of productive goods or land. At most they might prove that everybody is entitled to the necessary means of subsistence. But this is possible without private property strictly so called. Those who are either voluntarily or involuntarily poor and live at the expense of others possess no property and yet do not cease to be persons. Though the children of a family are without property during the lifetime of their parents, still they are true persons. Others derive private property from a primitive contract, express or tacit (contract theory), as Grotius (De jure belli et pacis, II, c. 2, & sect ; 2), Pufendorf, and others. This theory is founded on the supposition, which has never been and never can be proved, that such a contract ever has or must have taken place. And even supposing the contract was actually made, what obliges us today to abide by it? To this question the theory is unable to give a satisfactory answer.

Others again derive the justice of private property from the laws of the State (legal theory). The first to advance this hypothesis was Hobbes (Leviathan, c. 2). He considers the laws of the State as the fountain-head of all the rights which the subjects have, and consequently also as the source of private ownership. The same view is taken by Montesquieu, Trendelenburg, Wagner, and others, as far as ownership is concerned. Kant (Rechtslehre, p. 1, & sect ;& sect ; 8, 9) grants indeed a provisory proprietorship in the condition of natureprior to the formation of the State; but definite and peremptory ownership arises only through the civil laws and under the protection of the coercive power of Government. Most of the partisans of this theory, like Hobbes, proceed from the wrong supposition that there is no natural right properly so called, but that every genuine right is a concession of the civil power. Besides, their appreciation of actual facts is superficial. It is true that the laws everywhere protect private property. But why? A fact, like private property, which we meet in one form or another with all nations, ancient or modern, cannot have its last and true reason in the civil laws which vary with time and clime. A universal, constant effect supposes a universal, constant cause, and the civil laws cannot be this cause. If they were the only basis of private property, then we might abolish it by a new law and introduce communism. But this is impossible. Just as the individual and the family existed prior to the State, so the rights necessary for both, to which belongs the right of property, existed prior to the State. It is the duty of the State to bring these rights into harmony with the interests of the community at large and to watch over them, but it does not create them.

John Locke saw the real foundation of private property in the right which every man has to the products of his labour (labour theory). This theory was loudly applauded by the political economists, especially by Adam Smith, Ricardo, Say, and others. But it is untenable. There is no doubt that labour is a powerful factor in the acquisition of property, but the right to the products of one's labour cannot be the ultimate source and basis of the right of property. The labourer can call the product of his work his own only when the material on which he works is his property, and then the question arises how he came to be the owner of the material. Suppose, for instance, that a number of workmen have been engaged to cultivate a vineyard; after the work is done, they may indeed claim their wages, but the products of their labour, the grapes and the wine, do not belong to them, but to the owner of the vineyard. Then the further question may be asked: How did the owner of the vineyard acquire his property? The final answer cannot be the right to the product of his labour. There were some who asserted that the Roman law derived private property solely from the right of first occupation ( jus primi occupantis ), as for instance Wagner (Grundlegung 1, c. & sect ; 102). But they confound two things. Though the Roman jurists regarded occupation the original title of acquisition, they supposed as self-evident the right of private property and the right to acquire it.

VI. THE DOCTRINE OF THE CATHOLIC CHURCH

The Catholic Church has always regarded private property as justified, even though there may have existed personal abuses. Far from abolishing the commandments of the Old Law (Thou shalt not steal; thou shalt not covet thy neighbour's house, nor anything that is his) Christ inculcated them anew ( Matthew 19:18-19 ; Mark 10:19 ; Romans 13:9 ). And though the Catholic Church, following in the footsteps of her Founder, has always recommended voluntarypoverty as an evangelical counsel, yet she has at the same time asserted the justice and, as a rule, the necessity of private property and rejected the contrary theories of the Circumcellions, Waldenses, Anabaptists etc. Moreover, theologians and canonists have at all times taught that private ownership is just. Leo XIII, especially in several encyclicals, strongly insisted on the necessity and justice of private ownership. Thus the encyclical "Rerum novarum" expressly condemns as unjust and pernicious the design of the socialists to abolish private property. The right of acquiring private property has been granted by nature, and consequently he who would seek a solution of the social question must start with the principle that private property is to be preserved inviolate ( privatas possessiones inviolate servandas ). And Pius X, in his Motu Proprio of 18 Dec., 1903, laid down the following two principles for the guidance of all Catholics :

(1) "Unlike the beast, man has on earth not only the right of use, but a permanent right of ownership; and this is true not only of those things which are consumed in their use, but also of those which are not consumed by their use";

(2) "Private property is under all circumstances, be it the fruit of labour or acquired by conveyance or donation, a natural right, and everybody may make such reasonable disposal of it as he thinks fit."

VII. ECONOMIC THEORY BASED ON THE NATURAL LAW

The doctrine of the Church as here explained points out the right way to a philosophical justification of private property. It is derived from the natural law, since the present order in general demands it for the individual as well as for the family and the community at large; hence it is a postulate of reason and everybody receives by nature the right to acquire private property. This justification of private property, which is outlined by Aristotle (Polit., 2, c. 2), may be called the "economical theory based on the natural law ". The necessity of private ownership arises partly from the external conditions of life under which the human race actually exists, partly and especially from human nature as we know it by experience, with all its needs and faculties, inclinations both good and bad, which the average man reveals at all times and in all places. This theory does not assert that there should be nothing else than private property, much less that there should be private property of individuals only. Families, private corporations, communities, and states, as well as the Church, may own property. Its distribution is not something settled by nature uniformly and immutably for all times and circumstances, but full play is given to human liberty. Generally speaking, what is necessary is that private property should also exist. The boundaries between private and public property may vary from age to age; but, as a rule, private ownership becomes the more necessary and the more prevalent the farther the civilization of a people progresses.

In order to gain a clear insight into the basis of property, we must carefully distinguish three things:

(1) The institution of private property, i.e. the actual existence of private property with all its essential rights. In general, it is necessary that private property should exist, at least to a certain extent, or, in other words, the natural law demands the existence of private property. From the necessity of private property follows immediately;

(2) every man's right to acquire property. The institution of private property supposes this right ; for the former cannot rightly exist unless everybody has the right to acquire private property. Nature, or rather the Author of nature, requires the institution of private property; hence He must also will the means necessary for it, namely, the right of everyone to acquire private property. This right refers to no object in particular; it is merely the general capacity of acquiring property by licit means, just as one may say that owing to the freedom of trade everybody has the right to engage in any legitimate business. The right to acquire property belongs to every man from the first moment of his existence ; even the child of the poorest beggar has this right.

(3) From the right of acquisition arises the right of owning a certain concrete object through the medium of some fact.

Nobody, basing his claim on his existence alone, can say: this field or this house is mine. God did not distribute immediately the goods of this earth among men. He left this distribution to man's activity and to historical development. But since private property and consequently the acquisition of a definite object by a definite person is necessary, there must also be some facts on which such acquisition may be based. Among these facts the first in time and by nature is simple occupation. Originally the goods of this earth were without a definite owner, i.e. there was nobody who could call them his exclusive property. But since they had been given to man and since everybody had the right of acquiring property, the first men could take as much of these goods by simple occupation as seemed useful to them. Later generations, too, could make their own such goods as were still without a master. As time went on and the earth was populated, its goods passed more and more into the hands of individuals, families, or whole tribes. Now in order to acquire or occupy something, the mere will to possess it as private property is not sufficient; the object must, by some exterior fact, be brought under our control and must be permanently marked as our own. These marks may be of various kinds and depend on custom, agreement etc.

Philosophical Explanation

We shall prove first of all that, generally speaking, the institution of private property is necessary for human society and that it is consequently a postulate of the natural law ; this established, it follows at once that the right of acquiring property is a natural right. The first reason for the necessity of private property is the moral impossibility of any other disposition of property. If all goods remained without a master and were common to all, so that anybody might dispose of them as he saw fit, then peace and order would be impossible and there would be no sufficient incentive to work. Who indeed would care to cultivate a field or build a house, if everybody else were allowed to harvest the crop or occupy the building? Consequently, the right of ownership must rest either wholly with communities, as the communists and socialists maintain, or with private persons. It is impossible to reduce the doctrines of communism and socialism to practice. All attempts hitherto made have ended in failure. Of longest duration were the experiments of some sects which were founded on a religious basis. But it is manifest that communities based on religious fanaticism cannot become the general rule. History, too, testifies to the necessity of private property. An institution which meets us everywhere and at all times with only a few negligible exceptions, which develops more and more among the nations as their civilization advances, which has always been recognized and protected as just cannot be an arbitrary invention, but must be the necessary outcome of the tendencies and needs of human nature. For a universal and permanent phenomenon supposes a universal and permanent cause, and this cause in the present question can only be human nature with its wants and inclinations, which remain essentially the same. Besides, only private property is a sufficient stimulus for man to work. The earth does not furnish the products and fruits which man needs for the sustenance and development of soul and body, except at the expense of hard, continued labour. Now men will not undertake this labour unless they have a guarantee that they can freely dispose of its fruits for their own benefit and can exclude all others from their enjoyment. This argument, however, does not bind us to the labour theory refuted above. This theory maintains that each one can call his property all that and only that which is the product of his labour. This is wrong. The correct theory on the other hand says, if man had not the right to acquire private property, the necessary stimulus to work would be wanting; and the fruit of labour in this theory signifies private property in the widest sense, for instance, wages.

Private ownership alone is able to harmonize order and freedom in the social life. If no one could exclude others from using his property, order would be impossible. Nobody could lay down in advance a plan of his life and activity, or procure in advance the means and the material for his livelihood. If on the other hand productive goods were the property of the community and subject to its administration, liberty would be impossible. Man is not really free unless he can, at least to a certain degree, dispose of external goods at will, not only of goods of consumption but also of productive goods. The largest portion of human activity, directly or indirectly, aims at procuring external, useful goods; without private property, all would lapse into abject dependence on the community, which would be obliged to assign to each man his office and his share of the work. But with private property, both freedom and order can exist as far as the imperfection of all human conditions allows it. This is proved by history and by daily experience. Thus also the peace of society is best guaranteed. True it is that in spite of private property many disputes arise about "mine and thine." But these are settled by the law courts and do not disturb the essential order of society. In any other disposition of property among free men, the disputes would be far more numerous and violent, and this would necessarily lead to quarrels and feuds. Just as for the individual, so private property is necessary for the family. The family cannot exist as an independent organizm unless it can freely manage its internal affairs, and unless the parents have to provide for the maintenance and education of their children, and this without any external interference. All this demands property, the exclusive use of a dwelling, food, clothes, and other things, which frequently must be procured in advance so that a well-regulated and secure familylife may be made possible. Like the individual, the family, when deprived of all property, easily falls into a vagabond life or becomes wholly dependent on the will of others. The duty to care for the preservation and education of the family urges the father and mother to work unceasingly, while the consciousness that they are responsible for their children before God and men is a powerful stay and support of their moral lives. On the other hand, the consciousness of the children that they are wholly dependent on their parents for their maintenance and start in life is a very important element in their education. The socialists are quite logical in seeking to transfer not only the possession of productive goods, but also the care of the education of children to the community at large. But it is obvious that such a scheme would end in the total destruction of the family, and hence that socialism is an enemy of all genuine civilization.

Private property is also indispensable for human society in general. Progress in civilization is possible only when many co-operate in large and far-reaching enterprises; but this co-operation is out of the question unless there are many who possess more than is required for their ample maintenance and at the same time have an interest in devoting the surplus to such enterprises. Private interest and public welfare here meet each other half way. Private owners, if they consult their own interest, will use their property for public enterprises because these alone are permanently paying investments. The advances and discoveries of the last century would not have been accomplished, at least the greater part of them, without private property. If we but recall the extensive net-work of railroads, steamship lines, telegraphs, and telephones, which is spread around the world, the gigantic tunnels and canals, the progress made in electricity, aerial navigation, aviation, automobiles etc., we must confess that private property is a powerful and necessary factor in civilization. Not only economic conditions, but also the higher fields of culture are bettered by the existence of wealthy proprietors. Though they themselves do not become artists and scholars, still they are indirectly the occasion for the progress of the arts and sciences. Only the rich can order works of art on a large scale, only they have the means that frequently are necessary for the education of artists and scholars. On the other hand, poverty and want are the reason why many become eminent artists and scholars. Their advance in life and their social position depend on their education. How many brilliant geniuses would have been crippled at their birth if fortune had granted them every comfort. Lastly, we must not overlook the moral importance of private property. It urges man to labour, to save, to be orderly, and affords both rich and poor frequent opportunity for the exercise of virtue.

Though private property is a necessity, still the use of earthly goods should in a manner be general, as Aristotle intimated (Polit., 1. 2, c. 5) and as Christianphilosophy has proved in detail (St. Thomas, "Summa" II-II, Q. lxvi, a. 2; Leo XIII's encycl., "De conditione opificum"). This end is obtained when the rich not only observe the laws of justice, by not taking unjust advantage, but also, out of charity and liberality, share their abundance with the needy. Earthly goods are meant to be, in a certain manner, useful to all men, since they have been created for all men, and consequently the rich are strictly obliged to share their superfluities with the poor. True Christian charity will even go beyond this strict obligation. A wide and fertile field is thus opened up to its activity, through the existence of poverty. For the poor themselves, poverty is a hard, but beneficial, school of trust in God, humility, renunciation. It is of course self-evident that poverty should not degenerate into wretchedness, which is no less an abundant source of moral dangers than is excessive wealth. It is the function of a wise Government so to direct the laws and administration that a moderate well-being may be shared by as many as possible. The civil power cannot reach this end by taking away from the rich in order to give to the poor, for "this would be at bottom a denial of private property"; but by regulating the titles of income in strict accordance with the demands of public welfare.

Thus far we have spoken of the necessity of private property and the right to acquire it. It remains only to discuss the title of acquisition by which one becomes the proprietor of a certain concrete thing: a piece of land, a house, a tool etc. As explained above, the primitive title is occupation. The first who took possession of a piece of land became its proprietor. After a whole country has thus been turned into property, occupation loses its significance as conferring a title to real estate. But for movable goods it still remains important. It is sufficient to recall fishing and hunting on unclaimed ground, searching and digging for gold or diamonds in regions which have not yet passed over into private ownership. Many regard labour as the primitive title of acquisition, that is, labour which is different from mere occupation. But in this they are wrong. If one works at an object, then the product belongs to him only when he is proprietor of the object, the material; if not, then the product belongs to another, though the workman has the right to demand his reward in money or other goods. Now the question again recurs: How did this other man obtain possession of these goods? Finally we shall arrive at a primitive title different from labour, and this is occupation. Besides occupation there are other titles of acquisition, which are called subordinate or derived titles, as, for instance, accession, fructification, conveyance by various kinds of contracts, prescription, and especially the right of inheritance. By occupation an ownerless thing passes into the possession of a person, by accession it is extended, by the other derivative titles it passes from one possessor to another. Though all the titles mentioned, with the exception of prescription, are valid by the law of nature, and hence cannot be abolished by human laws still they are not precisely and universally applied by natural law. To define them in individual cases in accordance with the demands of the public weal and with due regard to all concrete circumstances is the task of legislation.

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